Although the international legislative process is by no means
as standardized and centralized as the corresponding municipal
ones, nevertheless, at least for purposes of analysis, it is
possible to distinguish a number of successive steps.

1. Precursors to the treaty-making process

In certain instances an international organ, faced with a
newly emerged or recognized problem as to which international
action appears desirable and urgent and as to the general tenor
of which a wide consensus appears to exist, will in the first
instance adopt a declaration expressing that consensus, making
certain recommendations (that in the parlance of international
lawyers may be considered as "soft," or non-binding,
law) and perhaps taking the initial steps (described below)
towards the formulation of a law-making treaty.3

Though in some instances the adoption of such a decision
occurs as soon as the organ is seized of the subject (i.e. at the
same session), in others there is a lengthier process of
consideration, including by subsidiary organs, which itself
constitutes an abbreviated version of the treaty-making process.4
Indeed, in some instances the organ may in effect embark on the
quest for a treaty, only to discover that that may be a difficult
goal to attain and that at the current stage only the adoption of
a non-binding resolution can be achieved.

2. Initiating the treaty-making process

Evidently an idea that eventually becomes an international
convention originates somewhere in the brain of some person,
though in retrospect it may be impossible to identify the author
and indeed the creative process may from the very beginning have
been a substantially collective one. However, for official
purposes a proposal generally enters the consciousness of the
international community when it is first advanced, usually in
some IGO organ, by the representatives of one or more member
states - or possibly by those of a nongovernmental organization
(NGO).

Assuming that IGO organ to be a formally competent one (or, if
not, that it forwards it, as part of a resolution or report, to
one that is)5 to decide on whether or not to initiate
a process for formulating a treaty in the proposed sense, that
organ must then consider whether it should do so. In effect it
must decide if the perceived need for and the anticipated value
of the proposed instrument, and the likelihood of achieving it,
justify the commitment of the resources expected to be required
to formulate, adopt, and bring the instrument into force. For
this, each of the following points must appropriately be taken
into account:

(a) The need that the new instrument is to meet

(b) The existing legal regime, including the extent of its
applicability to the perceived problem

(c) Any relevant legislative efforts in other fore

(d) The likelihood of success in developing an instrument,
i.e. is it foreseeable that the required measure of agreement
can be reached on the solution aimed for?

(e) The optimal form for the proposed instrument: treaty,
solemn declaration, model law or rule, etc.

(f) The likelihood that the proposed instrument will be
accepted by a sufficient number of significant states

(g) An anticipated time-schedule for the project

(h) The expected costs of formulating and adopting the
proposed instrument, both to the IGO concerned and to the
states participating in the process

(i) Particularly in formulating instruments in relation to
technical or scientific problems (such as outer space or the
environment) it may be necessary to carry out extensive
scientific studies or research to determine the parameters of
the problem and the lines of potential solutions6

To develop answers to these several questions, various devices
may be used, ranging from secretariat research carried out in a
library, to surveys of member states and of interested IGOs and
NGOs, to meetings of experts. Sometimes the initiator of the
proposal will have anticipated some or all of these issues and
presents a report addressing them.

In any event, in due course a decision must be taken as to
whether to proceed with a full-scale effort to formulate the
instrument in question. In taking such a decision, the organ
concerned should be conscious (but often apparently is not, at
least sufficiently) that by the nature of institutional inertia a
project of this type, once undertaken, is not likely to be
abandoned, even if the prospects of success should fade, due to
either a later, better understanding of the problem or actual
changes in circumstances, and even if time and cost projections
are wildly exceeded.

Other types of unsatisfactory outcomes must also be
anticipated. One is the eventual production of an emasculated
instrument, reflecting an inability to agree on actually useful
rules, and that in particularly unfortunate circumstances
actually constitutes a retreat from a higher level of
international obligation previously existing or in the course of
development. Alternatively, an instrument may be formulated and
adopted that contains such a high level of obligations that many
states, or at least certain crucial ones, refuse to participate.
In either event, an ill-planned project may then constitute, at
least for a time and in a particular forum, a bar to further
productive work.

For these reasons, the question of whether any limits should
be placed on the initiation of the multilateral treaty-making
process was one of those most intensively explored by the General
Assembly in its above-mentioned review exercise. In the end the
Assembly refrained from establishing or even endorsing any
explicit restraints, as allegedly incompatible with the sovereign
right of any state to introduce proposals in any international
organ in which it participates. Nevertheless, the General
Assembly in effect appealed to states to show self-restraint in
initiating proposals of this type, and by indicating the criteria
by which IGO organs should study such proposals it at least
implied that those that do not measure up should be rejected.7
In addition, the studies that were carried out as part of the
review exercise brought to light several examples, particularly
in IGOs that are systematically engaged in the legislative
process, such as the International Labour Organisation (ILO) or
the Council of Europe (C/E),8 of elaborate safeguards
against formally starting up the treaty-making machinery without
establishing in advance the prospect of success within a
reasonable time.

In this connection it should be pointed out that one
distinctive feature of the international legislative process,
compared to municipal ones, is its highly decentralized and
consequently at best poorly coordinated nature. Competence to
deal with particular questions, such as environmental ones, may
exist simultaneously in political organizations such as, on the
worldwide level, the United Nations, and, on regional ones, the
Organization of American States (OAS) or the Organization of
African Unity (OAU), in certain technically oriented specialized
agencies on the worldwide or the regional level, in specialized
worldwide (e.g., UNEP) or regional organs, in regional organs of
worldwide organizations (such as the Regional Commissions of the
United Nations), or even in some treaty organizations or organs
(such as the Meeting of Parties to the Vienna Ozone Convention).
Which of these chooses to initiate a particular project may thus
depend on chance, on the aggressiveness of an executive head, or
on obscure political considerations that lead interested states
to approach a particular institution. Though the UN General
Assembly can of course issue directives to its own subsidiary
organs and those of the Economic and Social Council (ECOSOC), in
respect of specialized agencies it can only issue
recommendations, which the latter are obliged to duly consider,
while independent regional organizations are not even under such
a gentle restraint. Though within the UN system there are
coordinating organs, such as the Administrative Committee on
Co-ordination (ACC), these operate primarily on the
inter-secretariat level and therefore can influence the political
organs only indirectly by facilitating the flow of information
about what activities are underway or planned in the various
organizations participating in the system.9
Ultimately, it may therefore be left to states, acting through
their representatives in the various IGOs, to prevent or
discourage overlaps and duplications, and selectively to
eliminate lacuna.

3. Formulating multilateral treaties

Once a competent IGO organ decides formally to initiate the
process of formulating a multilateral law-making treaty - or, for
that matter, some other type of norm-establishing instrument -
the second major stage in the international legislative process
commences. This stage, in turn, consists of a number of steps,
which, however, do not necessarily follow each other in a neat
sequence but may overlap, iterate, in part be omitted, and in any
event be structured in many different ways. All that is possible
is to give a general description of the purpose and preferred
means of executing each of these steps, on the understanding that
the actual process may differ in respect of any given exercise,
driven either ad hoc by the internal dynamics of the particular
process or by certain more or less rigid schedules that may be
characteristic of a particular organ (such as the International
Law Commission, the ILC) or organization (such as ILO).

(a) Preliminary studies

Depending on what studies were carried out before the project
was first proposed or in any event as part of the decision to
initiate it, it may or may not be necessary to carry out further
investigations before beginning to formulate the instrument. Such
studies may deal, especially in respect of proposed environmental
instruments, with scientific or technical matters, or with the
current state of national and international activities and laws
in the area.

As to how any necessary studies are carried out, this depends
in part on their nature and in part on the usages of the IGO
concerned. Often this task is assigned to the organization's
secretariat, which can either perform it with its own resources,
with specially engaged staff (especially if the exercise is a
large-scale one - such as the Third UN Conference on the Law of
the Sea, UNCLOS III), or with consultants. Another favoured
approach is to convene expert groups, the members of which are
either appointed by the executive head of the lGO (who is likely
to do so on the basis of governmental recommendations and will in
any event take into account various political balances) or by
particular states interested in and able to participate in the
project. Finally, the task may be carried out by a particular
subsidiary organ of the sponsoring IGO, especially if such organ
has itself an expert character (such as ILC).

(b) Preparing an initial draft

Perhaps no other step can be carried out in so many different
ways as the preparation of the initial draft of a proposed
norm-creating instrument. Sometimes a draft is submitted by the
initiating state as part of its first proposal of the project -
though, unless such submission is preceded by careful albeit
informal consultations, it is likely to create suspicions and
even a backlash. Sometimes the preparation of such a draft is
assigned to the organ charged with preparing the above-mentioned
initial studies and constitutes part of its report. Sometimes a
draft is prepared entirely outside the sponsoring IGO, for
example by an interested NGO. Lastly, the draft may be prepared
in the negotiating forum (see next subheading) by a specially
assigned rapporteur, a working group, or the secretariat, or
simply evolve gradually out of the consideration of the subject.

Rather than starting with a complete draft text, with each of
at least the substantive provisions spelled out completely, even
if only tentatively, it is sometimes found preferable to start
with only "heads of agreement," i.e. with just
indications of the principal issues and how it is proposed to
resolve them. In any event, the so-called "formal" or
"final clauses" are often omitted entirely at this
stage, unless some aspect of them (e.g., the number or type of
parties; the arrangements for entry into force) impinge directly
on the substance.

(c) Negotiation

The most difficult and generally the longest substage in
formulating a new instrument is that required to negotiate its
terms and text. It is this part of the process that is most
clearly political, in that it involves the mediation of the
various interests concerned: those that favour a strong and those
that favour a weak instrument; those that desire a wide and those
that prefer a narrow one: those that prefer different approaches
based on differing scientific perceptions or legal habits; and
especially those that may wish to obtain resources from the
proposed new regime and those that might have to contribute
resources in order to make such a regime feasible and acceptable.

The need for such negotiations naturally informs the entire
legislative process - indeed, it is one of the reasons why that
term is appropriate, for the negotiations required to formulate
international laws may differ in scope but not in any other
essential respect from those required for national or even local
laws. Often negotiation starts before the treaty-formulating
process has been formally initiated, in that the initiator may
consult with leading states before ever introducing a proposal.
The considerations involved in whether to initiate the process
may also already involve advance decisions as to substance and
form, which may be reflected in the terms of the IGO resolution
approving the start of the process10 and also in the
choice of or in the composition of any ad hoc organs (whether
expert or representative) mandated to carry out or to assist in
the formulating process. Though in principle the negotiations
culminate in the decision on the adoption of the proposed
instrument, in practice they may continue (as they have in
respect of UNCLOS and especially the protection of the ozone
layer11) even into the post-adoption period.

Naturally, the preferred organ for carrying out negotiations
is a representative one, that is an organ consisting of the
instructed representatives of states. If the sponsoring IGO is a
worldwide or large regional one, then most often the designated
organ is a restricted one, that is not a plenary one in which all
IGO members are represented. A standing restricted organ (such as
the 58-member UNEP Council or the governing organ of a
specialized agency) always has a balanced composition considered
appropriate for the general business of the IGO12 if
the task is assigned to an ad hoc organ, then the agreement about
its composition may constitute, as pointed out above, one of the
initial manoeuvres in the negotiating process.13

However, it should be understood that even if certain steps in
formulating an instrument are assigned to an expert organ, the
latter is likely to function, in effect, as a negotiating forum.
This is so because practically always such a body is established
with a politically/ geographically balanced composition, and
because many of the experts, whether nominally appointed ad
personam or directly by governments, will in effect speak
for, and only after consultations with, their national
authorities; thus it is most unlikely that even an expert
committee report will be entirely apolitical.

Although the negotiations are normally carried out by persons
formally designated as state representatives, such as the members
of IGO organs, it has become more and more customary to permit a
certain participation to the representatives of non-official
organizations, in particular of NGOs.14 Although such
representatives cannot participate in any formal decision-making,
whether by voting or in formulating consensi, they can often
attend many of the meetings of representative and even some
expert organs, they can sometimes address these organs orally,
and often may submit written observations and sometimes even
proposals. It is this device that increasingly permits the
interested public, i.e. that which supports the NGOs that have
standing to intervene, to participate in the international
legislative process, in somewhat the same way as the public can
participate in the work of certain national legislative organs.
This is a most significant and relatively recent development,
which is particularly important in the environmental field, where
a number of well-financed and knowledgeable NGOs (including, of
course, those established by interested business and industrial
councils) operate and consider their participation in
international norm-making to be a major aspect of their work.

(d) Consultations with governments

The international legislative process is, in spite of the
increasingly frequent but still peripheral involvement of ad
personam experts and of NGOs, primarily a dialogue among
governments, carried out by their designated representatives for
the most part in IGO organs.

Thus, in a sense, governments, at least the principal ones,
are technically always up to date with the state of progress of
any given legislative project

Nevertheless, especially since the bulk of this work is
normally carried out in low-profile IGO organs with restricted
membership, it is useful for many governments, and especially for
the majority not represented on such organs, to receive periodic
progress reports and in particular to be given an opportunity to
make a direct input. This may be accomplished in several ways,
but two are the most usual.

Organs with restricted membership, whether or not these are
constitutional principal organs (i e. established directly by the
treaty creating the IGO) or subsidiary ones, normally report
periodically to a plenary organ, either on their work in general
or by request on particular projects. In reporting on a
legislative project, they may, depending on the custom of the
organization, report in greater or lesser detail, ranging from a
mere statement that work is continuing, to transmission of the
texts of the latest draft, perhaps indicating areas of
disagreement (often by the use of square brackets to designate
disputed or alternative texts), or even the submission of summary
or verbatim records of the relevant debates.15 These
may then be discussed in the plenary organ, again at greater or
lesser length as is the house custom, thus giving all the members
of the organization a chance to indicate their views. The
culmination of such a discussion may be a specific resolution
asking that the legislative exercise proceed in a certain way or
take into account certain points, or it may merely result in the
relevant records of the plenary organ being transmitted to the
junior organ for its information as reflecting the reaction of a
larger circle of governments.

An alternative method is to inform the governments of member
states directly about the progress of the legislative project,
usually through communications addressed to them individually by
the executive head of the IGO. Such communications may be
required by the mandate of the formulating organ to be made at
certain stages of the work (e.g., when a complete draft has been
prepared)16 or may be required on an ad hoc basis by
the plenary organ. In many instances the communication will
request that reactions to the report, and sometimes answers to
specific questions, be communicated within specified deadlines to
the executive head for transmission to the organ concerned. This
process, which is not likely to be undertaken routinely or
frequently, gives an opportunity to all potential parties to the
instrument under consideration, and especially to those not
otherwise represented, to communicate their considered and
detailed views as to all questions at issue.

(e) Consultations with the public

Although, as just pointed out, provision is frequently made in
the international legislative process for formal consultations
with governments, the same is rarely if ever true in respect of
consultations with other entities, i.e. such as might be
considered as representing the public in a different way from
governments. Nevertheless, as multilateral treaty-making is
generally carried out in the open, i.e. in meetings at least in
principle open to the media and to interested NGOs, and at least
the reports made from one organ to another or from one session of
an organ to another are rarely subject to classification, the
public usually has sufficient access so as to be able to exert
such influence as it can - which usually means through the normal
process in democratic societies by which popular views may be
translated into legislative recommendations addressed to the
executive, which in turn instructs the negotiators.

This process is, of course, at best unsystematic and often
ineffective, in particular in respect of the views of those who
do not happen to be citizens of an advanced democratic country.
And even in those, certain categories of persons are
traditionally politically powerless. Nor are the interests of
future generations systematically protected, but only insofar as
certain articulate and sensitive individuals or groups take
account of them.

4. Adopting multilateral treaties

When it is judged by the competent organ (which may be the one
charged with the formulation of the proposed treaty instrument or
the plenary organ to which it reports) that the process of treaty
formulation is complete or at least that it has progressed as far
as it can at that stage, a decision as to its adoption must be
taken. One possible decision of course is that the instrument
under consideration should not be adopted, either at all or at
the current time. If it seems otiose to return it to the
formulating organ, the project may be put into indefinite
abeyance or may be terminated entirely, for example if a change
in circumstances, such as the formulation of a similar instrument
in some other forum, makes it pointless to proceed. If, however,
as is usually the case, the prospects of a carefully elaborated
treaty do not appear to be entirely unpromising, a number of
further decisions must be taken.

(a) Choice of forum

If it is decided to move to adoption, the forum in which this
should occur must be designated. In some instances that decision
is predetermined by the constitution or practices of the IGO,
which may dictate a particular procedure.17 If the
decision is open, the choice is normally between a standing organ
and an ad hoc conference and will be based on several
considerations, of which the following are the most important:

(a) The adopting organ should, as closely as possible, consist
just of all the potential parties to the instrument - it being
equally undesirable to have decisions as to the provisions of a
treaty made by governments that may not or will not become
parties as it is to exclude governments that are expected to
participate. Thus, if there is no standing organ that fulfils
that specification (e.g., in respect of a regional-seas
agreement), then it is preferable to convene a specially composed
conference.

(b) If all that remains to be done is to agree on the
formality of the adoption, then this can usually be handled as
part of the routine business of the competent standing organ;
however, if extensive work still has to be done, it may be
difficult to accomplish this within the crowded work programme of
a standing organ, and for that reason a specially convened
conference with no other business may be preferable.

(c) Depending on the nature and importance of the
subject-matter, it may be thought preferable to arrange for
adoption in a high profile senior IGO organ, such as the UN
General Assembly; alternatively, in certain circumstances a
special conference, even if convened for only a few days, may be
considered as the better launching platform.18

(b) Tasks of the adopting forum

The adopting forum must, at the end of its work, be able to
approve the texts of one or more instruments to be then submitted
for formal action by states. In effect, therefore, it must
complete whatever the formulating organ has not, since the work
of the two organs is complementary - indeed, in certain
situations one organ can perform both sets of tasks. These
include:

(i) Completion of the substantive negotiations - usually
only on a few especially difficult points that the primary
negotiating forum was not able to resolve;19

(ii) Perfection of the text, which may require the
addition, at this stage, of further languages, and the use of
a Drafting Committee;

(iii) Formulation of the final clauses, which determine inter
alia what international entities can become parties to
the proposed instrument and on what terms - requiring
political decisions for which a technical formulating organ
may not have been competent;

(iv) Consideration of potential reservations, to be
regulated either by a clause in the instrument itself or in a
Final Act (see section 5(b) below);

(v) The making of a formal record to enable all potential
parties to announce and have preserved their interpretations
of the instrument and politically important statements and
reservations.

The final product of the adopting forum will, particularly if
it is an ad hoc conference, consist of one or more instruments
meant for action by states (which instruments may include several
coordinated treaties or a principal treaty and subordinated
protocols), of resolutions presenting the collective views of the
adopting forum, and of a Final Act that pulls all of these
together and supplies or refers to a sufficient record to put the
entire exercise into context and to permit differing views to be
formally preserved, whether for political or for eventual legal
reasons.20

(c) Decision-talking

All the fore so far referred to, but particularly the adopting
one, must take a series of decisions in advancing the legislative
process and especially in completing each stage thereof. In
principle all these decisions can be taken by votes, but in
practice increasingly more of them are taken without that
formality - which again is a feature in which the international
differs from the municipal legislative process.

The gradual decrease in the amount of voting in international
organs is by no means a casual phenomenon. The
one-nation-one-vote rule is increasingly recognized as being
entirely unrealistic, by pretending to equate in this single
respect the influence of individual states that differ
drastically in all others: population, size, military or economic
power, and contribution to the international community. However,
since on the one hand there was no immediate possibility of
changing this rule (which has been incorporated into most
international constitutional instruments and is even considered
by many as constituting one of the basic principles of
international organization law) while on the other the more
powerful states are steadily more reluctant to subject themselves
to this artificial type of "majority rule," it has
become necessary in order to ensure the continued participation
of these states in important political processes to avoid voting
as much as possible. This avoidance is most frequently expressed
as an attempt to attain "consensus" or "general
agreement."

In the first instance it would appear that this development
represents a giant step backwards, in effect to the League of
Nations, whose principal organs operated on the unanimity
principle and thus were rarely able to take effective action.
Indeed, the need to obtain consensus is likely on the one hand to
be time-consuming, for progress can be held up almost
indefinitely by any participant, and on the other to tend to
reduce the content of substantive decisions to no more than just
the low highest common denominator21 on which general
agreement can be reached.

There are, however, some mitigating factors. One is that the
extended consideration that the search for consensus almost
always entails frequently results in an improvement in the text
under consideration, as ingenuity is applied to ways of
overcoming real and perceived obstacles to particular solutions.
The other is that in most instances the consensus requirement is
not an absolute one; while an absolute requirement in effect
allows any participant, great or small, to prevent a decision for
any reason, whether important or trivial or merely capricious,
the usual consensus requirement merely constitutes a political
overlay on the fundamental decision-taking rules of the IGO
concerned. This means that if a representative is generally
perceived as acting unreasonably in preventing the taking of
decisions and cannot be moved by other appeals, then a resort to
voting under the standard rules can always be threatened and, if
necessary, carried out.22

If resort is had to voting, then it is in effect useful to
have in mind a dual count: one relating to the formal majority
requirements, which in most IGO organs and IGO-convened
conferences requires that substantive matters be approved by
two-thirds of those casting yes or no votes - i.e. absentees and
abstainers are disregarded; the other relates to the importance,
for the issue at hand, of the dissenters or non-participants.
Thus, even if adoption in a formal sense can be attained, but it
is clear that implementation will be fatally crippled by the
non-participation of important states, it is often regarded as
sensible to suspend the process until a more generally
satisfactory solution can be secured through continued
negotiations - or, and this is particularly important in respect
of environmental matters, until international or domestic
pressures bring dissenting governments around.23

5. Bringing multilateral treaties into force

(a) General considerations

As already mentioned, the international legislative process
differs from the municipal one in one important feature: once a
municipal law is adopted by the legislature and, if necessary,
approved by the executive and perhaps even vetted by the
judiciary, then it automatically binds all who are subject to the
government in question; in contrast, the adoption of an
international treaty by an IGO or a conference normally has no
immediate legal effect at all. What is required is that
individual states take action in respect of the instrument
-normally by having an authorized representative sign it and then
having that signature ratified by appropriate governmental
action, which may involve parliamentary approval - and also that
enough states do so, sometimes within a specified time limit.
Even then the treaty only enters into force for the states that
have ratified, and subsequently for those that do so later.

Consequently, some approved treaties do not enter into force
for many years, and even some that do may only be in force for a
few states, thus rendering them ineffective. Indeed, the
international legal landscape is littered with treaties not yet
in force but still capable of becoming so,24 others as
to which all hope has been abandoned,25 while still
others lead a shadow existence for want of sufficient
participation.26

Evidently an important determinant of the fate of any treaty
is its specific provision concerning its entry into force. There
is no general rule about what such a provision should be, though
naturally it must reflect the special nature of the instrument
concerned. If the substantive provisions are such that they can
sensibly and beneficially apply if only a few states are parties,
then this can be provided.27 In other situations,
however, there is no point in bringing a particular regime into
force without the participation of all or substantially all the
states concerned, or of particular states, and in that event it
should be so provided.28 There are also situations in
which a regime might function even with uneven participation, but
certain states consider themselves disadvantaged if they are
bound if their neighbours or rivals are not.29
Finally, some treaties foresee large potential expenditures, for
example for establishing an IGO, and until sufficient
contributors agree to participate others will hesitate to enter
lest they be required to finance the entire operation.30

In principle it should not be difficult to specify
entry-into-force conditions to take into account the appropriate
factors of the type listed above. In practice, however, not only
may there be disagreement about the weights to be assigned to
each factor, but certain ways of expressing conditions may be
politically precluded. For example, even if it is generally
understood that a number of potentially large contributors must
become parties to a proposed treaty in order to make it
effective, it is likely to be unacceptable to specify these by
name or even to provide that entry into force requires that
contributors responsible for a certain percentage of the
potential contributions of all eligible states join; to
articulate such conditions would in effect give a veto or an
unduly large "vote" to certain states as to entry into
force, which may be unpalatable to the large majority of states
dedicated to the principle of equal voting powers. The actual
formulae adopted may, in trying to achieve indirectly what may
not be said directly, therefore create controversy or be
difficult to implement.31

(b) Reservations and options

Domestic legislation generally applies uniformly throughout
the jurisdiction in question, for any exceptions or variations
have to be expressed in the legislative instrument itself.
International treaties are different, because usually states can
accept them with reservations that modify the obligations as
between the reserving state and the other parties, in part
depending on how the latter react to the reservation.
Furthermore, reservations may create problems as to whether the
reserving state is a party at all, if there is a question about
the compatibility of a reservation with express or implied
conditions of the treaty. Some treaties also include optional
provisions (typically as to disputes settlement) offering choices
to potential parties. The result is that there may be
considerable variations in the respective obligations of the
parties, and a most complicated network of non-uniform bilateral
relations among them.

To a considerable extent these problems of uncertainty and
inhomogeneity may be resolved through the careful drafting of the
reservation provisions of the proposed treaty, which may range
from absolutely prohibiting any reservations to permitting almost
all. But even more important than careful drafting is the policy
decision meant to be implemented through these provisions. In
general, liberal reservation and option provisions will on the
one hand facilitate the participation of states that have
different views as to some substantive provisions of the treaty;
at the same time they may permit variations in obligations that
are damaging and possibly even fatal to the instrument. A
restrictive provision on the other hand will help preserve the
unity of the instrument but may reduce, again perhaps fatally,
the number of participants. The optimal balance must be
determined carefully for each instrument, in a highly political
decision, that in a nuanced way takes into account both the
substantive contents of the treaty and the attitudes of the
potential parties.

(c) The domestic aspects of ratification

Although ratification itself is an international act, what
precedes it is carried out subject to domestic law and domestic
political and administrative considerations. While the
representatives who participated on the international plane may
have been impatient to achieve the formulation and adoption of a
treaty, the domestic actors who must approve ratification (who in
any event include executive officials, but may also involve those
of the legislature) may have at best different priorities and at
worst different substantive objectives. In particular, in
democratic states a whole series of steps may have to be taken to
ensure that the proposed treaty is both politically and legally
acceptable, each such step constituting an obstacle to speedy, or
even to any action.

That this constitutes a real problem is confirmed by any
examination of the spotty record of ratifications of practically
all multilateral treaties, very few of which can boast even
one-half of the potential participation. If one tries to
establish the reasons for this widespread abstention,32
one will generally find few objective reasons but rather the
sheer administrative difficulty that most states have in coping
with the decisions concerning the desirability of ratifying,
possibly with reservations, hundreds of treaties that may be of
interest to them or to their neighbours - with perhaps two to
three dozen increasingly complex multilateral instruments added
each year. This is true of states ranging from the developing,
with perhaps simple procedures but minimal trained manpower, to
the developed, with potentially adequate staffs but extremely
complex devices for securing and coordinating the reactions of
all potentially interested domestic organs and entities.

It has indeed been recognized that the volume of international
legislation has become such that states are practically unable to
keep up with the backlog and with new instruments.33

However, except for defeatist suggestions that the flow should
be reduced -which would mean that international norms that are
needed and as to which agreement can be reached would have to be
delayed - little effective action has been taken or planned to
assist states in coping. Only a few treaty-sponsoring lGOs
provide technical assistance in translating treaty instruments
into local languages, in preparing presentations to parliamentary
and other bodies, and in drafting domestic legislation and
regulations to facilitate implementation of treaty obligations.
Instead, IGOs sometimes unintentionally add to the burden of
domestic administrations by well-meaning demands for periodic
progress reports on treaty actions and implementation - which may
be designed to stimulate ratification but may also reduce the
time of those available to take such action.

There is no doubt that in many fields, and this is
particularly true of the environment, numerous states need
assistance to enable them to participate in the international
legislative process so that their interests be adequately
represented, but in particular at the stage where the new
international norms must be accepted and then be implemented by
domestic legal processes.

One persistent problem that should be easy to solve -
particularly in the age of automated information systems - is the
making of up-to-date information about the status of multilateral
treaties {e.g., list of signatories, ratifications and other
corresponding actions, withdrawals, reservations and objections
thereto) readily and currently available. While good annual
reports are available on those treaties of which the UN
Secretary-General is the depositary,34 this is less
true of treaties deposited with other entities, and in particular
with states - such as all the regional-seas conventions and their
protocols.35

6. The process of keeping international legislation up
to date

In today's fast-moving world, international law, just as its
domestic counterpart, must be kept up to date- and that sometimes
at almost breakneck speed, as witness the developments concerning
the ozone protection regime. The following are certain devices
for accomplishing this in an effective manner.

(a) Simplified treaty-adopting and -amending practices

Traditionally, treaty law has been adjusted from time to time
by additional treaty actions, either by amending existing
instruments, by creating others to complement older texts, or by
entirely superseding those that cannot easily be adapted to serve
modern purposes. Generally, all these measures technically
require full-scale treaty initiating, -formulating, -adopting,
and entry-into-force procedures, with all the work and
complications described above. Furthermore, because each such
amendment or new treaty is subject to the same domestic
treaty-acceptance procedures as the original instrument, and
these procedures are accomplished with uneven speed and
efficiency by different states, the pattern of ratifications
becomes yet more complicated, creating an entirely uneven and
ultimately unintelligible pattern of obligations among states
that are parties to the same agreement but with different
amendments, or that participate in different supplementary or
superseding agreements.36 Instead of progressing
towards a generally applicable international regime, the volume
of international law may be growing at the cost of uniformity of
coverage.

It is for this reason that a number of devices have been
developed for simplifying the process of updating treaties,
devices that concern one or both of the major phases of the
legislative process described above. These devices include: the
use of framework or umbrella conventions that merely state
general obligations and establish the machinery for the further
norm-formulating devices described under this heading;37
the supplementation of such conventions and by individual
protocols establishing particular substantive obligations in
implementation of the general objectives of the convention;38
the use of easily amendable technical annexes.39

In respect of all these devices, the international phase of
the treaty-making process - initiation, formulation, and adoption
- can be simplified and accelerated by assigning them to
specially designated, dedicated expert or representative organs
that either meet periodically or that are easy to convene as the
need for further legislative action arises, and that are serviced
by a specialized secretariat thoroughly familiar with the regime
in question as well as with other related regimes that must be
taken into account.40 Thus the usual start-up time for
these phases of the international legislative process can be
largely eliminated, as well as much routine reporting and the
repeated transfer of proposed texts among expert, restricted
representative and plenary organs. Consequently texts ready for
adoption by the states participating in the regime can be
prepared in substantially shorter times - subject, of course, to
the need to negotiate generally acceptable terms.

Another important saving in time and effort can, however, be
achieved in respect of the second, domestic, phase of the
process. This may be done by providing in the basic convention
that all or certain of these new instruments do not require
ratification but enter into force in some simplified way:

(a) It may be provided that supplementary instruments
require only signatures in order to bind states.41
While of course the constitutional requirements of certain of
these parties will require that such signatures only be
affixed after the completion of domestic procedures that
correspond to those required for ratification, many other
states will be able to take advantage of such provisions to
achieve instant participation.

(b) It may be provided that once an amendment enters into
force for a sufficient number of states, it automatically
enters into force for all;42 this short-circuiting
of the ratification process by those states that do not act
early may, however, have to be purchased at the cost of
providing in the basic treaty that a state on which an
amendment is thus imposed can denounce the treaty in some
simplified manner.43

(c) It may be provided that certain amendments, especially
to technical annexes, do not require any signatures and
ratifications at all, but automatically enter into force for
all parties to the basic treaty unless a sufficient number of
them object within a stated time limit from the adoption of
the amendment, or that such amendment enters into force for
all treaty parties except those that object within a
specified time period.44

Evidently, all such devices for somehow taking out of the hand
of states the need for each of them to act positively on any
treaty instrument before it enters into force for it will be
accepted only most reluctantly by many of them and generally only
if restricted to basically subordinated and technical matters; as
already pointed out, it is usually necessary to preserve some
method for the state to opt out simply, either from the new
legislative feature or, perhaps, from the entire regime.45
Although in a sense these are instances of an IGO organ
"legislating" directly for states, the legal obligation
of each state ultimately derives from its consent to the
underlying treaty in which the particular empowerment of the IGO
is set out, and consequently one might refer to a
"derivative treaty obligation."

(b) The establishment of new intergovernmental
organizations and organs

It has already been pointed out that the international
legislative process is one that takes place largely, indeed more
and more almost exclusively, under the auspices of competent
IGOs. It is also true that more and more, the new international
agreements that are formulated and adopted either provide new
tasks for existing organizations (usually the one sponsoring the
agreement) or they provide for the creation of new organizations
through which the states' parties can collectively carry out some
of the objectives of the new instrument or be assisted in doing
so individually, but most particularly to help develop the new
law even further.

Under the previous heading various devices were discussed for
accelerating the process of formulating and adopting
supplementary or amending treaty provisions in respect of a basic
treaty, which may indeed be merely a framework convention. Since
these devices for the most part function optimally if implemented
by specialized and dedicated expert, representative and
secretariat organs, this can best be accomplished by creating a
special international organization for that purpose - but
naturally only if such a step can also be justified by the other
tasks to be assigned to the new IGO.

In the event that there is no call for creating a full-blown
new IGO, another device is merely to establish the necessary
expert and representative organs, leaving these to be serviced by
the secretariat of some existing, willing, and competent IGO -
which will usually be the one under whose auspices the treaty in
question was formulated.46